[2025] UGHCCRD 24

#### 5 **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **(CRIMINAL DIVISION)**

#### **REVISION APPLICATION NO. 002 OF 2025**

# **(ARISING FROM CRIMINAL MISC. APPLICATION NO. 0030 OF 2025, BUGANDA** 10 **ROAD CRIMINAL MISCELLANEOUS APPLICATION NO. 87 OF 2024 AND CRIMINAL CASE NO. 913 OF 2024)**

# **ISAAC KIMAZE SSEMAKADDE :::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

# 15 **UGANDA (PRIVATE PROSECUTION BY BYAMAZIMA JOSHUA AND**

**TONNY TUMUKUNDE) :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

## **RULING ON RECUSAL**

#### **BY JUSTICE GADENYA PAUL WOLIMBWA**

#### 20 **Introduction**

On 10th April 2025, this court, in the case of **Isaac Kimaze Ssemakadde v. Uganda (Private Prosecution by Byamazima Joshua and Tonny Tumukunde), Criminal Miscellaneous Application No. 0030 of 2025**, issued the following orders:

- 1. The Chief Magistrate's Court of Buganda Road is directed to stay proceedings in **Uganda** - 25 **(Private Prosecution by Byamazima Joshua and Tonny Tumukunde) V Isaac Kimaze Ssemakadde, Buganda Road Chief Magistrates' Criminal Case No. 913 of 2024,** pending the determination of **Isaac Kimaze Ssemakadde V Uganda (Private Prosecution by Byamazima Joshua and Tonny Tumukunde), Criminal Revision Case No. 002 of 2025.** - 30 2. The parties are directed to file submissions in **Criminal Revision Case No. 002 of 2025 to expedite the revision**. The Applicant must file his submissions by 23rd April 2025. The Respondents must file their reply by 2nd May 2025. Any rejoinder must be filed by 7th May 2025. The Court will issue its Ruling on notice.

The Applicant never complied with the said directives. To his credit, on 28th April 2025, after the 35 expiry of the time to file submissions, he requested an extension to enable him to find another advocate and file his submissions. I granted him an extension. He still did not comply with the subsequent directives but instead filed a letter requesting me to recuse myself from the trial, citing concerns of apparent bias.

As required by Rule 8 (2) of The Constitutional (Recusal of Judicial Officers) (Practice) 40 Directions, 2019, this is my response to the request for recusal.

#### **Ground for recusal**

The Applicant, through his Advocate, alleges that my analysis in **Criminal Miscellaneous Application No. 0030 of 2025** (Supra), in which I concluded that a prima facie case had largely not been established for a stay of criminal proceedings pending revision, demonstrates apparent 45 bias against the Applicant.

#### **Guiding Principles on Recusal**

In executing their duties, Judicial Officers are primarily governed by the Constitution, which is supported by specific statutes and Codes like the Judicial Service Act and the Uganda Code of Judicial Conduct. These aim to ensure an independent, efficient, and fair judicial system.

50 Article 149 of the Constitution provides for the Judicial Oath, which establishes the ethical and integrity foundation for judicial service, in the judiciary. It provides that:

"*Every judicial officer shall, before assuming the duties of his or her office take and subscribe the oath of allegiance and the judicial oath…"*

The Judicial Oath is set out in the fourth schedule to the Constitution. It reads thus;

55 "*I …swear in the name of the Almighty God/Solemnly affirm, that l will well and truly, exercise the judicial functions entrusted to me and will do right to all manner of people in accordance with the Constitution of the Republic of Uganda as by law established and in accordance with the laws and usage of the Republic of Uganda without fear orfavour, affection or ill will." Emphasis Added.*

The phrase "*without fear or favour, affection or ill will*" signifies a commitment by the judicial 60 officer to perform their duties impartially and independently.

The UNODC, in its commentary on the Bangalore Principles of Judicial Conduct, has observed that:

*Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made*.

65 In addition, it has also been observed that:

*Impartiality is the fundamental quality required of a judge and the core attribute of the judiciary. Impartiality must exist both as a matter of fact and as a matter of reasonable perception*.

Impartiality is the cornerstone of the judicial function; it ensures that justice is administered fairly and without bias, fostering public confidence in the legal system. Judicial officers who demonstrate

70 bias, favouritism, or conduct that undermines impartiality violate their constitutional and ethical duties. Such conduct not only damages the reputation of the judiciary but also threatens the fundamental right of all individuals to a fair trial. In these circumstances, the judicial officer must recuse themselves from the case to uphold the principles of justice, fairness, and the rule of law.

Recusal acts as a safeguard, preserving the integrity of the judicial process and maintaining public 75 trust. It ensures that decisions are made free from undue influence, personal interest, or perceptions of bias. Therefore, any judicial officer who contravenes these standards should voluntarily recuse themselves from the case to uphold the constitutional and ethical imperatives of judicial service.

There are two very important guiding principles that often arise when the subject of recusal is discussed. The first is the Presumption of Judicial Impartiality, and the second is the Double 80 Reasonability Test.

In determining whether the onus of establishing apprehended bias has been discharged, a court begins with a presumption of impartiality, specifically that judges will uphold their oath of office. This presumption may be displaced by cogent evidence that meets the 'double reasonability' test, which comprises two objective elements: (i) the individual assessing the alleged bias must be

⁸⁵ reasonable and (ii) the apprehension of bias itself must be reasonable in the circumstances of the case.

#### **The Presumption of Judicial Impartiality**

90 This presumption flows directly from the Constitution. Under it, judges are presumed to be impartial when ruling on the issues before them, relying solely and exclusively on the law and evidence presented in each particular case, without being influenced by biases, external pressures, or other extraneous factors.

In the South African case of **Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC)***,* Ngcobo CJ said:

- 95 *"What must be stressed here is that which this Court has stressed before: the presumption of impartiality and the double-requirement of reasonableness. The presumption of impartiality is implicit, if not explicit, in the office of a judicial officer. This presumption must be understood in the context of the oath of office that judicial officers are required to take as well as the nature of the judicial function. Judicial officers are required by the Constitution to apply the Constitution* 100 *and the law "impartially and without fear, favour or prejudice." Their oath of office requires them* - *to "administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law." And the requirement of impartiality is also implicit, if not explicit, in section 34 of the Constitution which guarantees the right to have disputes decided "in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal* 105 *or forum…"*

The then CJ goes on to say that "*judicial officers, through their training and experience, have the ability to carry out their oath of office and it "must be assumed that they can disabuse their minds of any irrelevant personal beliefs and predispositions*. *Hence the presumption of impartiality. But as this Court pointed out in both SARFU II and SACCAWU, this presumption can be displaced by*

- 110 *cogent evidence that demonstrates something the judicial officer has done which gives rise to a reasonable apprehension of bias. The effect of the presumption of impartiality is that a judicial officer will not lightly be presumed to be biased. This is a consideration a reasonable litigant would take into account. The presumption is crucial in deciding whether a reasonable litigant would entertain a reasonable apprehension that the judicial officer was, or might be, biased*. - 115 Furthermore, he stated that, *"the presumption of impartiality and the double-requirement of reasonableness underscore the formidable nature of the burden resting upon the litigant who alleges bias or its apprehension. The idea is not to permit a disgruntled litigant to successfully complain of bias simply because the judicial officer has ruled against him or her. Nor should*

*litigants be encouraged to believe that, by seeking the disqualification of a judicial officer, they*

120 *will have their case heard by another judicial officer who is likely to decide the case in their favour. Judicial officers have a duty to sit in all cases in which they are not disqualified from sitting. This flows from their duty to exercise their judicial functions. As has been rightly observed, judges do not choose their cases; and litigants do not choose their judges. An application for recusal should not prevail unless it is based on substantial grounds for contending a reasonable apprehension of*

125 *bias.*

Additionally, he stated that, "*but equally true, it is plain from our Constitution that "an impartial Judge is a fundamental prerequisite for a fair trial". Therefore, a judicial officer should not hesitate to recuse himself or herself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reason, was not or will not be impartial. In a*

130 *case of doubt, it will ordinarily be prudent for a judicial officer to recuse himself or herself in order to avoid the inconvenience that could result if, on appeal, the appeal court takes a different view on the issue of recusal."*

The extract emphasises that judicial impartiality is fundamental to fair trials. While judges are presumed to be impartial, this presumption can be challenged with convincing evidence of bias.

135 Additionally, the totality of the circumstances must also be considered before the presumption is properly rebutted. Judges should, however, recuse themselves if there are reasonable grounds to believe they might not be impartial, and in cases of doubt, uphold the integrity of the judicial process.

#### 140 **The Double Reasonableness Test**

Under this test, the person considering the alleged bias must be reasonable and (ii) the apprehension of bias itself must be reasonable in the circumstances of the case. The question to be asked therefore is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judicial officer was biased.

#### 145 **Who is a Fair-Minded Observer?**

In **Almazeedi v Penner and another (Cayman Islands) [2018] UKPC 3)** at Para 20, Lord Mance citing with Approval Lord Hope in **Helow v Secretary of State for the Home Department [2008]**

**UKHL 62; [2008] 1 WLR 2416**, said that, "*she or he: Is a person who reserves judgement until both sides of any argument are apparent; Is not unduly sensitive or suspicious; Is not to be* 150 *confused with the person raising the complaint of apparent bias; Is not, on the other hand, complacent; Knows that justice must not only be, but must be seen to be, unbiased and knows that judges, like anybody else, have their weakness - an observation with perhaps particular relevance in relation to unconscious predisposition; Will not shrink from the conclusion, if it can be justified objectively, that things that they have done or said or associations that they have formed may make* 155 *it difficult for them to judge the case before them impartially, and will also take the trouble to*

*inform themselves on all matters that are relevant, and see it in its overall social, political and geographical context*."

A fair-minded observer, based on the description provided in the Persuasive Precedent above, is characterised by a thoughtful and balanced approach to evaluating arguments and evidence. This 160 individual withholds judgement until both sides of an argument are considered, demonstrates objectivity, and is aware that judges, like everyone else, can have weaknesses and unconscious predispositions. They seek to understand the broader context of a case, remain vigilant against complacency, and acknowledge their own weaknesses that may affect impartiality. Importantly, they strive to ensure that justice is not only fair but also perceived as such, actively engaging with 165 all relevant information to form a comprehensive understanding. They exhibit a commitment to understanding both sides of an issue before forming a judgement.

Under Canadian law, the principles surrounding the test to be applied in determining whether a judge should recuse himself or herself were identified in the Supreme Court of Canada in **Committee for Justice and Liberty v National Energy Board [1978] 1 SCR 369** 170 **394** approved in **Valente v The Queen [1985] 2 SCR 673** and summarised by Donald JA in **Taylor Ventures Ltd (Trustees of) v Taylor [2005] BCCA 350 (CanLII) par 7** as follows:

- *a) A judge's impartiality is presumed.* - *b) A party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified.* - 175 *c) The criterion for disqualification is the reasonable apprehension of bias.* - *d) The question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude.*

- *e) The test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would think that it is more likely than not that the judge, whether* 180 *consciously or unconsciously, would not decide fairly.* - *f) The test requires demonstration of serious grounds on which to base the apprehension.* - *g) Each case must be examined contextually, and the inquiry is fact specific.*

These principles indicate that a judge should recuse themselves only if there are serious, factspecific grounds that a reasonable, informed observer would conclude might reasonably question 185 the judge's impartiality, and the party requesting recusal must substantiate these grounds. The decision requires balancing the presumption of impartiality with an objective assessment of potential bias, ensuring that the integrity of the judicial process is upheld.

In **Bossé v Lavigne [2015] NBCA 54 (CanLII) par 7**,the The Court of Appeal of New Brunswick held that, *"the elements of this objective test are that: (i) the person considering the alleged bias* 190 *must be a reasonable person, not one who is very sensitive or scrupulous, but rather one who is right-minded; (ii) the person must be a well-informed person, with knowledge of all the relevant circumstances; (iii) the apprehension of bias itself must be reasonable in the circumstances of the case: (iv) the situation must be fully examined, not just the face of it; and, the examination must be one that is both realistic and practical; (v) the enquiry begins with a strong presumption of* 195 *judicial impartiality and looks to determine whether it has been displaced such that there is a real likelihood or probability of apprehension that the judge would not decide the case fairly on the*

*merits."*

The above decision outlines a balanced, objective approach to assessing whether there is a genuine concern that a decision-maker might be biased. It emphasises fairness, rationality, thorough 200 examination of the facts, and the importance of maintaining public confidence in judicial impartiality.

# **My Response to the allegations of bias**

The Applicant, through his Advocate, alleges that my analysis in **Criminal Miscellaneous Application No. 0030 of 2025** (Supra), in which I concluded that a prima facie case had largely 205 not been established for a stay of criminal proceedings pending revision, demonstrates apparent bias against the Applicant. While I understand and respect your right to raise such concerns, I must

respectfully disagree with your characterisation of my actions as indicative of apparent bias. I categorically confirm that my conduct therein was governed by and reflects judicial impartiality.

As noted earlier, the constitutional presumption of judicial impartiality is rebuttable, but only if 210 there is cogent evidence suggesting that something the judge has done or said gives rise to a reasonable apprehension of bias. Additionally, the totality of the circumstances must be considered. See **Bernert v ABSA Bank Ltd**, (Supra). The Applicant, acting through his Advocate, has failed to provide cogent evidence which, in the totality of the circumstances and context of the matter referenced, suggests that something I did or said gives rise to a reasonable apprehension of 215 bias. The grounds presented for my recusal appear to be based more on unfounded presumptions

than on substantial evidence and do not, when viewed in the full context of the matter, demonstrate that I was biased.

The Applicant, acting through his Advocate, is reminded that the judicial process inherently involves scrutinising the claims and defences presented by both parties. My role as the presiding 220 judge requires me to analyse the evidence, apply the relevant law, and reach a conclusion based on the facts and the law. I must connect the evidence, facts, and law to arrive at a conclusion. It is not sufficient to merely state a conclusion; I must demonstrate the reasoning that leads to it. This process, by its very nature, involves a critical examination and evaluation of the claims and defences presented.

225 The question would then be whether a fair-minded and informed observer, having considered the facts, would conclude that there existed a genuine possibility that I was biased in my evaluation as the presiding judicial officer.

As you are aware, the matter before the court involved a request for an order to stay criminal proceedings in **Uganda (Private Prosecution by Byamazima Joshua and Tonny Tumukunde)**

230 **v Isaac Kimaze Ssemakadde, Criminal Case No. 913 of 2024,** pending determination of **Isaac Kimaze Ssemakadde v Uganda (Private Prosecution by Byamazima Joshua and Tonny Tumukunde), High Court Criminal Revision Case No. 002 of 2025**. In his submissions, the Applicant argued that the relief of staying criminal proceedings should be granted because:

1. He had established a prima facie case for revision, which was neither frivolous nor 235 vexatious, and the issues raised had a probability of success.

- 2. He will suffer irreparable harm and prejudice by undergoing a trial vitiated by fundamental flaws and irregularities, as alluded to in the Application for Revision. - 3. The balance of convenience lies in his favour.

Reason (1) above, i.e., whether the Applicant established a prima facie case for revision and the 240 issues raised had a probability of success, is relevant to the Applicant's request for recusal.

It is essential to recognise that assessing whether a prima facie case exists and whether the issues raised have a reasonable prospect of success is a fundamental and indispensable step in evaluating the Applicant's request for the extraordinary injunctive relief of staying Criminal Proceedings pending Revision. The process is neither casual nor does it require less scrutiny when the record 245 is available to the court. Such a process necessitates careful examination of the evidence on record, the facts presented, and the applicable legal principles to ascertain whether there is a sufficient basis to proceed or, in this instance, to temporarily halt the proceedings.

In considering whether a prima facie case was established in the proceedings referenced by the Applicant through his Advocate, I was required to determine if there was a serious question to be 250 tried on revision, whether the grounds for revision were arguable, and if there was a real possibility of success on revision. This assessment is not superficial; it demands a detailed examination of the evidence on record, the facts of the case, the applicable law, and a conclusion drawn. As the presiding Judge, I had to demonstrate how the evidence, viewed through the lens of the law, supports or refutes the assertions or defences advanced. This is exactly what I accomplished in the 255 proceedings mentioned.

The articulation of this evaluation process aimed to provide clarity and transparency, ensuring that all parties involved understood the basis of my assessment. It was not, in any way, an indication of a predetermined outcome or personal bias against the Applicant. Unfortunately, this necessary and transparent demonstration of judicial reasoning was perceived by the Applicant as apparent

260 bias. I firmly believe that a fair-minded and informed observer, having considered the facts presented on record in relation to the questions that needed to be answered before a determination was made, and the applicable law, would conclude that as the presiding Judicial Officer, there was no possibility that I was biased. As a result, I have found no reasons whatsoever to recuse myself from the trial.

# **Decision**

The Application for recusal is denied.

$$\mathcal{A}$$

Gadenya Paul Wolimbwa 270 **JUDGE** 18th June 2025

> The Assistant Registrar, Criminal Division shall communicate this decision to the parties through ECMIS.

Gadenya Paul Wolimbwa **JUDGE** 18th June 2025

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